Judge's zoning change leaves school builder in uncertain position

Variance to allow height of 55 feet overturned

A visiting circuit judge yesterday reversed a decision last fall by the Carroll County Board of Zoning appeals that granted increased heights for buildings at a planned private academy in Finksburg.

Frederick G. Smith, a dentist and a vice president at Sinclair Broadcasting Group Inc., wants to build a nonreligious, nonprofit day school for several hundred students from kindergarten through 12th grade, called the Gerstell Academy. The architect's design for the campus buildings features classic white columns and red brick. The project was supported by county planners.

But a neighboring property owner, the M.E.F. Partnership, took the zoning appeals board decision to Carroll County Circuit Court. The company's lawyer could not be reached for comment last night.

Judge Daniel W. Moylan, a visiting judge from Washington County, heard arguments yesterday and disagreed with the board's finding that a private school is "a quasi-public building" and entitled to the height variance. Ruling from the bench, he said the zoning appeals board erred but told the attorneys they could file a motion Monday for reconsideration of his decision.

Smith said he purchased the 95-acre parcel in the 2600 block of Old Westminster Pike (Route 140) last month and would keep the land in a public foundation he created a few years ago, the Freven Foundation, to preserve it from development. The current zoning, a mix of conservation and residential, would allow Smith to build some 50 houses, he said, but the height of buildings is limited to 35 feet -- not tall enough for the classic campus quadrangle his architects designed, or a gymnasium.

After a hearing on Oct. 27, the county's Board of Zoning Appeals granted the height variance to 55 feet, upholding a decision in August by the county zoning administrator.

Smith said last night that he was stunned by the decision and wasn't sure what he would do now, beyond consulting with his attorneys.

"That's the $64 question," he said. "They shot me down. It's pretty obviously a problem to build any kind of decent physical plant. I looked three years, all over, and this was the only perfect piece of property I found, with a perfect rectangle.

"If I can't build my school there, I can put 50 houses there, and go find a place somewhere else," he said, but "I don't want to do that because I don't want to bust up that land. I favor preservation of land, not development of land."